In re Underhill's Estate — 6 N.Y.S. 133

Majority

p. 133

In re Underhill’s Estate.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

1. Executors and Administrators—Accounting—Authority of Surrogate.

The surrogate has no power, upon an accounting by an executor, to require a devisee, to whom the executor has paid money, to repay it on the ground that such payment was in excess of the amount authorized by the will.

3. Same—Decree—Power to Vacate.

Where such unauthorized order has been made in the decree of settlement, the surrogate has the power, inherent in courts generally, to vacate the decree in that respect.

Appeal from surrogate’s court, Westchester county.

Argued before Barnard, P. J., and Pratt, J.

2'ownsend, Dyett, <£• Einstein, for appellant. Alex. Thain, for respondent.

Phillip R. Underhill, the executor of Elizabeth R. Underhill, accounted before the surrogate of Westchester county. By the terms of the will of the deceased, Elizabeth M. Guyon was entitled to a life-estate in a share of the net income. The surrogate, in the decree then made, adjudged that Mrs. Guyon had been overpaid $3,953.35, and further adjudged that she repay the said sum to the executor. The decree was made in November, 1882, and Mrs. Guyon died in December, 1883, and her executor applied to the surrogate to vacate that part of the decree which adjudged Mrs. Guyon to repay the overpayment to the executor. The surrogate granted the motion and vacated the decree so far as it affected this overpayment to Mrs. Guyon. The order was rightly made. A surrogate has power to vacate orders which his court had no power to make. Vreedenburgh v. Calf, 9 Paige, 128. The power to correct judgments in proper cases is inherent to courts of justice. Ladd v. Stevenson, 112 N. Y. 325 , 19 N. E. Rep. 842 . The surrogate had no power upon the accounting beyond settling the accounts. The court established the assets and payments for and on behalf of the estate. An unauthorized payment had no place in the account. That was a private matter between the executor and the person to whom the payment had been made, and enforceable as such by action. The surrogate could issue no execution to enforce the expunged parts of this decree. The surrogate had no power to adjudge anything but the fact whether Mrs. Guyon had been paid her life-estate interest up to the time of the accounting, and, when this was

p. 134

done, the distribution could proceed. The order should be affirmed, with costs.

Pratt, J., concurs.

Cases cited

Ladd v. Stevenson 112 N. Y. 325 N.Y. 1889-01-29 p. 133